United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
cause comes before the Court sua sponte. On December
20, 2017, Defendant Alexander Poulos (“Poulos”)
filed a notice of removal (Doc. 1), alleging that this Court
has original subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1441(a), because
the Complaint arises under and raises questions of federal
law (Doc. 1 ¶¶ 3-4). Because it is not clear from
the face of Plaintiff Nationstar Mortgage LLC's
(“Nationstar”) single-count mortgage foreclosure
Complaint that this action arises under or raises question of
federal law, the Court has doubt as to the existence of
subject matter jurisdiction.
courts “are obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be
lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179
(11th Cir. 2004); Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). “The
jurisdiction of a court over the subject matter of a claim
involves the court's competency to consider a given type
of case, and cannot be waived or otherwise conferred upon the
court by the parties.” Jackson v. Seaboard Coast
Line R.R. Co., 678 F.2d 992, 1000 (11th Cir. 1982).
the alleged basis for subject matter jurisdiction is a
federal question under 28 U.S.C. § 1331, as it is in
this case, the party invoking jurisdiction has the burden of
demonstrating that the action “aris[es] under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. The federal question at issue
“must appear on the face of the plaintiff's
well-pleaded complaint.” Cmty. State Bank v.
Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). An action,
therefore, may not be removed under § 1331 on the basis
of a defense that arises under federal law. See,
e.g., Franchise Tax Bd. of State of Cal. v.
Constr. Laborers Vacation Tr. For S. Cal., 463 U.S. 1,
14 (1983) (stating that “since 1887 it has been settled
law that a case may not be removed to federal court on the
basis of a federal defense . . . .”). Instead,
“[a]s a general rule, a case arises under federal law
only if it is federal law that creates the cause of
action.” Id. (quoting Diaz v.
Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996)).
Complaint raises one count seeking to foreclose Poulos'
mortgage. Doc. 1 ¶ 1; Doc. 2 ¶¶ 1, 6. An
action to foreclose a mortgage arises under state, not
federal, law. Reed .v. U.S. Bank Nat'l
Ass'n, 8:17-cv-1051-T-33AEP, 2017 WL 2001998, at *2
(M.D. Fla. May 11, 2017) (stating that a claim to foreclose a
mortgage on real property is a state law claim); see also
U.S. Bank Nat'l Ass'n v. Windsor, No.
6:15-cv-1895-Orl-41GJK, 2016 WL 3166851, at *2 (M.D. Fla. Mar
14, 2016) (stating that a complaint sought to foreclosure a
mortgage and did not raise any federal cause of action),
adopted, 2016 WL 3144143. Thus, federal law does not
create the cause of action here.
limited circumstances, federal question jurisdiction also
exists over a “special and small category” of
cases of state law claims where “a federal issue is:
(1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court
without disrupting the federal-state balance approved by
Congress.” Gunn v. Minton, 568 U.S. 251, 258
(2013). Although Poulos cites to this standard in his notice
of removal, he does not explain how Nationstar's mortgage
foreclosure claim falls within this “special and small
category” of claims. Instead, Poulos alleges that
federal question jurisdiction exists based on his claim that
Nationstar's Complaint is an attempt to collect a debt
that violates various provisions of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692a-1692p. Doc. 1
¶¶ 2, 4-5. However, such a defense cannot serve as
the basis for federal question jurisdiction. Franchise
Tax Bd., 463 U.S. at 14; see also U.S. Bank, Nat
'l Ass 'n v. Martinez-Clark, No.
6:16-cv-717-Orl-40KRS, 2016 WL 9460737, at *1 (M.D. Fla.
Sept. 1, 2016) (stating that the mortgagor's federal
defenses and counterclaims in a foreclosure action did not
confer subject matter jurisdiction and recommending that the
action be remanded to state court), adopted, 2016 WL
on the foregoing, Poulos has not clearly established that the
Court has federal question jurisdiction over this matter and,
consequently, whether the Court has subject matter
it is hereby ORDERED as follows:
is directed to SHOW CAUSE as to why this
case should not be remanded for lack of subject matter
jurisdiction. Defendant shall file a written response with
the Court within FOURTEEN (14) DAYS from the
date of this Order. Failure to respond within the time
provided will result in the remand of this case without